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(a) Civil cases

(1) Stay Must Ordinarily be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court

In civil cases, an application for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under subsection (a) (2) of this rule, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the appellate court or to a single justice, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(2) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties

Relief available in the appellate court under this rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety thereby shall submit to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as an authorized agent upon whom any papers affecting liability on the bond or undertaking may be served. A surety’s liability may be entered against the surety on motion in the lower court without the necessity of an independent action. The motion and such notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

Relief available in the appellate court under this rule, or denial of such relief, may be conditioned on such reasonable terms as the appellate court or single justice may impose. For failure to observe such terms, the appellate court or single justice may make such further order as it or he deems just and appropriate.

(b) Criminal cases

(1) Stay Must Ordinarily be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court

In criminal cases, an application for a stay of execution of a sentence pending appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the single justice of the appellate court to which the appeal is being taken, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has previously denied an application for a stay or has failed to afford the relief which the applicant requested with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

Reasonable notice of the motion for a stay shall be given to the Commonwealth. If the motion is filed at least 30 days prior to the date the appellant’s brief is due, the time for a response shall be governed byRule 15. If the motion is filed at any other time, the Commonwealth shall have 30 days to respond. A single justice may shorten or extend the time for responding to any motion authorized by this Rule.

Finality. An order by the single justice allowing or denying an application for a stay may be appealed to the appellate court in which the appeal is pending. An order by the appellate court in which the appeal is pending, allowing or denying an application for a stay, shall be final.

Upon release of a rescript affirming the conviction, the clerk of the appellate court shall notify the clerk of the trial court and the parties that the conviction has been affirmed and that therefore, the stay of execution of sentence has automatically expired.

Reporter’s notes

(2009)[The notes to the 2009 amendments were drafted by the Reporter for the Massachusetts Rules of Criminal Procedure]. This Rule was revised in 2009 to describe more fully the procedure for obtaining a stay of execution of a criminal sentence in an appellate court. It complements Rule 31 of the Rules of Criminal Procedure.

The 2009 amendment clarified the appellate process for stays of execution of a criminal sentence pending an appeal. As in civil cases, requests for a stay must first be presented to the trial court, unless such an application is not practicable. Either the defendant or the Commonwealth may seek relief from a single justice of the court that will hear the appeal concerning the trial judge’s decision to deny, e.g., Commonwealth v. Aviles,422 Mass. 1008(1996), or grant, e.g. Commonwealth v. Hodge,380 Mass. 851(1980), a stay. Only the parties may do so. See Hagen v. Commonwealth,437 Mass. 374, 375 (2002) (crime victim lacks standing to request revocation of stay). In the ordinary course of events, for all but first-degree murder cases a single justice of the Appeals Court is the appropriate forum. The single justice does not review the decision of the trial judge, but considers the matter de novo. See Commonwealth v. Allen,378 Mass. 489, 497 (1979).

Rule 6(b)(2) recognizes that it is important to give the Commonwealth adequate time to prepare a response to a motion for a stay, since that will often require substantial effort in addressing the merits of the underlying appeal.

After the single justice decides the issue, there is only one further step in the process: an appeal to the panel of the Appeals Court that will decide the merits, or the full bench of the Supreme Judicial Court if the case will be decided there. This changes prior practice, which allowed a party aggrieved by the decision of a single justice of the Appeals Court the option of seeking relief both by appealing the decision in that court and asking a single justice of the Supreme Judicial Court to entertain the matter. See e.g., Duong v. Commonwealth,434 Mass. 1006(2001). The appeal from the decision of the single justice may be accompanied by a motion for an expedited ruling. See e.g., Restucci v. Commonwealth,442 Mass. 1045(2004).

As also provided in Mass. R. Crim. P. 31, a stay of execution of sentence automatically expires when the appellate court considering the appeal releases a rescript affirming the conviction, unless the appellate court decides to extend it. A rescript is “released” when it is announced to the public and the appellate court notifies the parties that the court has decided the case. Cf. Mass. R. App. P. 23 (requiring the clerk of the appellate court to mail the parties a copy of the rescript and the opinion, if any). In the ordinary course of events, the rescript “issues” twenty-eight days following the release date or upon the denial of any petition for rehearing or application for further appellate review, whichever is later. Id.

When a rescript is released affirming a conviction, the clerk of the appellate court, in addition to the obligation that Mass. R. App. P. 23 imposes, shall notify the parties and the trial court clerk that the stay of execution of sentence has automatically expired. If the defendant wishes to apply for a new stay, in order to seek a rehearing or further appellate review, such a request should go to the appellate court that decided the case (either the panel of the Appeals Court or the full bench of the Supreme Judicial Court).

The court that decided the appeal may exercise its discretion to extend a stay of execution pending a petition for rehearing, application for further appellate review, or petition for certiorari. Unless otherwise specified, an extended stay expires when the rescript issues. The appellate court may act sua sponte or pursuant to the defendant’s motion, which may be filed before the appeal is decided or after the rescript is released.